The Right to Remain Silent: A Criminal Defense Lawyer’s Basic Advice to a Client

New Jersey Criminal Lawyers Schwartz Posnock

In State v. Demetrius Diaz-Bridges, 2012 N.J. LEXIS 6 (January 12, 2012), the New Jersey Supreme Court reversed the lower court’s suppression of the defendant’s inculpatory statements. The Court considered whether the defendant’s request for permission to speak with his mother in the midst of his custodial interrogation was an assertion of his right to silence that required the investigating officers to cease their questioning. Because neither defendant’s statements about his desire to speak with his mother nor any of his other statements were assertions of his constitutionally-protected right to silence, the Court concluded that suppression of any portion of his confession was in error. The Court found that the defendant willingly agreed to speak with the police on multiple occasions. Although when confronted with inconsistencies in his various stories, the defendant’s demeanor changed and he began to weep, the Court did not reasonably equate that response with the invocation of any right. Nor was his request to speak with his mother of constitutional significance. The Court held that nothing in the words that defendant used suggested that he was asking for the questioning to stop or intended to invoke his right to silence. When defendant did clarify the reasons for the request, he told the detectives that he wanted to be the first to tell his mother what he had done. He repeatedly told them that he was willing to continue speaking with them. As a result, the Court held that his requests to speak with his mother could not be interpreted to have been a desire to secure her advice about the waiver of his rights or an assertion of silence pending the grant of permission to speak with her.

The lesson of the Diaz-Bridges decision for New Jersey criminal lawyers is a simple one: In advising a client who is under investigation or who has been charged with a crime, whether or not the investigation is for an alleged state criminal offense or a federal criminal offense, the client should be instructed to clearly and unequivocally assert their right to remain silent and their right to consult with an attorney. At Schwartz & Posnock, we routinely provide our business cards to our clients, for the purpose of providng the card to a law enforcement agent, so that the identification of our firm as criminal defense counsel for the accussed is known, and for the purpose of reminding our client to assert their right to remain silent.